24 Ind. 41 | Ind. | 1865
Petition for partition, alleging that the plaintiff, John Beaver, is seized in fee of four-elevenths, and the plaintiff, Desire Beaver, wife of John, of one-eleventh, and the defendant of six-elevenths, undivided, of certain lands. Answer, that the parties had before mutually agreed upon partition, and that the plaintiffs, under the name of John Beaver, had, in pursuance of such agreement, executed and delivered to the defendant a bond, by which they bound themselves to convey to the defendant a certain portion of the lands held in common, on or before September 1,1861, and the defendant had made a like bond to the plaintiffs, whereby he bound himself to convey to the plaintiff, John Beaver, on the same day, the other part of saidlands; that each took possession of the lands so tobe conveyed to him; that the defendant has made lasting and valuable improvements on his portion; that at the time stipulated in the bonds, he tendered a conveyance to the plaintiff, John, according to the condition of his bond, and demanded from the plaintiffs a like conveyance; that the plaintiffs refused to perform, or to accept the conveyance tendered by the defendant. The deed from the defendant to the plaintiff, John, was brought into court for the plaintiffs, and a copy of the bond alleged to have been given by them was annexed to the answer, and made part of it. This bond is executed by John Beaver, and purports,inthebodyof it, to bind him alone; but it specifies that he is to convey to the defendant five-elevenths of the lands. A specific performance is prayed against the plaintiffs. Reply, 1st. General denial. 2d. Thatthe parties being desirous of making partition, and being unable to agree thereon, agreed orally that two neighbors should examine
Was the second paragraph of the reply good ? The reply seeks relief against the bond on the ground of mistake, without the slightest admixture of imposition or fraud. The mistake alleged was one of computation, made by two friendly neighbors, mutually chosen by the parties. There was no taking unawares, no hasty action, under circumstances not favorable to deliberation. The parties knew the lands, and must bo presumed to have had a knowledge of the value of the respective tracts. In short, no fact was uuknownto them, save the singlo circumstance that a mistake had been made in the mathematical process of computing the sums which would constitute the respective shares of tiro parties, in the aggregate sum at which the whole lands were valued. It seems, too, that the appellants doubted the correctness of
The court decreed a specific performance of the condition of the bond, as well against Desire Beaver, as against John, her husband, and it is alleged that, as against Desire, this decree was erroneous.
The averment in the answer is that both plaintiffs executed the bond, “by and under the name of John Beaver. ” The bond itself, which constitutes a part of the answer, contains
But we cannot undei’stand how the bond, not being obligatory upon the plaintiff Desire Beaver, could be set up as a sufficient answer to the complaint, so far as she was concerned. Not purporting to be executed by her, it must be hel d for nothing as against her, and it was not necessary that she should deny its execution under oath. Peoria, &c., Ins. Co. v. Walser, 22 Ind. 73. The averment in the answer that she executed the bond, is inconsistent with the bond itself. As the answer was made to the whole complaint, and was not sufficient as such, the demurrer should have been carried back to the answer, and sustained to it.
It is due to the learned judge who tried the cause below to say, that we see nothing in the record to indicate that his attention was called to the insufficiency of the answer.
The judgment is reversed, with costs, and the cause re